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INTERNATIONAL HYDROGRAPHIC REVIEW
NOVEMBER 2012
MARINE RESEARCH IN MODERN LAW OF THE SEA
LOSC and Reality
By Tilemachos Bourtzis and Gerasimos Rodotheatos
(European Centre for Environmental Research and Training, Department of International
and European Studies, Panteion University of Social and Political Sciences)
Abstract
Marine Research has proved to be one of the most controversial legal topics in terms of practice.
While Law of the Sea Convention (LOSC) contains a special Part (XIII) on Marine Scientific
Research, it fails to regulate topics of dual, ambiguous and/or evolving content. The current paper
makes an inquiry into those topics (e.g. Military Surveys, Marine Archaeology, Remote Sensing)
and tries to identify problems or gaps. These activities can have an extremely large footprint as they
are connected with State and financial interests. The consequences of allowing marine research
activities to proceed without solid rules could be grave. It is of extreme importance that each of the
activities mentioned in this paper should have a clear set of rules of conduct.
Résumé
La recherche marine s’est révélée comme l’une des questions juridiques les plus controversées dans
la pratique. Tandis que la Convention sur le droit de la mer contient une partie spéciale (XIII) sur la
recherche scientifique marine, elle ne parvient pas à règlementer des questions dont le contenu est
double, ambigu et/ou en évolution. Le présent article expose une investigation de ces sujets (par
exemple les levés militaires, l’archéologie marine, la télédétection) et essaie d’identifier les
problèmes ou les lacunes. Ces activités peuvent avoir des répercussions très importantes étant donné
qu’elles sont liées à des intérêts nationaux et financiers. Le fait de permettre la poursuite des activités
de recherche marine sans règles solides pourrait entraîner des conséquences graves. Il est
extrêmement important que chacune des activités mentionnées dans le présent article devrait
posséder un ensemble de règles de conduite claires.
Resumen
La Investigación Marina ha demostrado ser uno de los tópicos legales más polémicos en la práctica.
Aunque la Convención de las Naciones Unidas sobre el Derecho del Mar (LOSC) contiene una Parte
especial (la XIIIª) sobre Investigación Científica Marina, deja de regular tópicos relativos a un
contenido doble, ambiguo y/o que evoluciona. El presente documento hace averiguaciones sobre
estos temas (pe. Sondeos Militares, Arqueología Marina, Teledetección) e intenta identificar
problemas o carencias. Estas actividades pueden tener un impacto extremadamente grande ya que
están vinculadas a intereses estatales y financieros. Las consecuencias de permitir que las actividades
de investigación marina avancen sin reglas sólidas podrían ser graves. Sería sumamente importante
que cada una de las actividades mencionadas en este documento tuviese un conjunto de reglas de
conducta.
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INTERNATIONAL HYDROGRAPHIC REVIEW
A.
NOVEMBER 2012
Introductory Remarks
In the mid 19th century, mankind turned its scientific view
on the marine environment. The first research activities
were ocean observations, depth measurements, surveys
for navigational purposes and placing submarine telegraphic cables and finally marine resources exploitation
research (Wegelein, 2005). These main activities of
marine research, despite technological advancements,
largely remain unchanged even today.
As a result of State practice, by the period up to World
War II, hydrographic surveying was considered as part of
the freedom of navigation in the high seas, due to its
importance for navigational safety. In this same period
and due to the lack of State sovereignty beyond the
territorial sea, scientists enjoyed the freedom to conduct
marine research almost everywhere. Non living marine
resources exploitation activities were, due to technical
limitations, usually conducted in coastal areas inside the
States’ territorial seas, which despite the lack of a
common rule on their breadth, usually did not exceed a 3
nautical mile zone (Tsaltas & Kladi Efstathopoulou,
2003). Technological advancement and the mounting
wartime needs for hydrocarbon fuel, eventually led to the
creation of the concept of the continental shelf. This
legitimized access to areas beyond the territorial sea
(Roukounas, 2005)1.
The customary regime for marine research was depicted
in the four Geneva Conventions on the Law of the Sea,
most importantly on the Continental Shelf Convention and
the Territorial Sea Convention2. One major characteristic
of the marine research regime codified in the 1958 Geneva Conventions, was (and still is) the distinction between basic and applied marine research (“pure marine
research” and “natural resources exploitation regime”)3.
Based on this distinction, coastal State’s consent for scien­
tific purposes research would be granted easier than in the
case of research for economic purposes (Tsaltas, 2003).
As mentioned earlier, hydrographic surveys by that time
were regarded as a part of the freedom of navigation and
this was confirmed in the High Seas Convention. The
same Convention affirmed the right of scientific research
for all States in the high seas (United Nations Convention
on the Continental Shelf, 1958, Art. 5.1 and 5.8 for the
non interference with fundamental research activities).
However, the aforementioned right was misused and overexploited during the following years (the two most
famous cases being the Pueblo and the Glomar Explorer
incidents4). The aforementioned conditions placed all
types of marine research in focus, initially of the Sea Bed
Committee (1970-1972) and later of the 3rd Conference on
Law of the Sea (1973-1982, from now on UNCLOS). The
Sea Bed Committee recognized the need to provide a distinction between basic and applied marine research but
also noted the difficulty to do so (Soons, 1982; Wegelein,
2005). It was only after a very long and tenuous negotiation, that an agreement was finally met on the various
marine research regimes. The final Law of the Sea Convention text provides 3 distinct regimes on marine research (Soons, 1982):
1. Marine Scientific Research Regime (MSR). LOSC
Part XIII. Research regarding marine environment or
other non commercial purposes.
2. Prospecting, Exploration and Exploitation Regime.
LOSC Part XI and Agreement relating to Part XI of
the Convention. Research regarding the exploitation of
non living marine resources.
3. Hydrographic Surveys Regime. LOSC Arts. 19(2)(j),
21(1)(g), 40, 54. Surveys and mapping of sea and
ocean floor for safety of navigation purposes.
B.
Marine Research in LOSC
The main characteristic of LOSC regulated marine
research is the variation of status depending on the scope
of the activity and the maritime zone. The consent regime
for research has crept in ocean areas previously open to
unconditional research, mainly through the adoption of
Exclusive Economic Zones (EEZ)5. The following table
———————————————————————————————————————————————————————————–
1
See the Caracas Treaty between UK and Venezuela of 1942 for the Delimitation of the Continental Shelf in the Gulf of Paria and the Truman
Declaration of September 28 1945 on the continental shelf, regarding the exclusive jurisdiction of the USA as to fishing and research exploitation
activities up to the depth of 100 fathoms.
2
See the Caracas Treaty between UK and Venezuela of 1942 for the Delimitation of the Continental Shelf in the Gulf of Paria and the Truman
Declaration of September 28 1945 on the continental shelf, regarding the exclusive jurisdiction of the USA as to fishing and research exploitation
activities up to the depth of 100 fathoms.
3
As “pure marine research” was understood the study of the marine environment for non commercial scientific purposes, whereas commercially
targeted research would come under the GCCS regulation as “natural resources exploitation regime”.
4
In the first case (which took place in 1968), USS Pueblo was boarded and captured by North Korean authorities under the accusation of spying
while on North Korean territorial sea, whereas the crew claimed that the ship conducted routine research activities outside the North Korean territorial sea. In the second case (which took place in 1974), USNS Glomar Explorer while claiming to conduct research for mineral deposits, was actually proved to be searching for the Soviet submarine K-129 (sunk in 1968).
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As a general rule, conduct of Marine Scientific Research
(MSR) activities is subject to less strict regulation than the
more economically crucial Exploration and Exploitation
research. Hydrographic Surveys have contextually been
dealt, as in previous codifications, as a non separate part ,
of the navigational freedom (Churchill & Lowe, 1999;
Guilfoyle, 2009; Rothwell & Stephens, 2010), though it is
true that State practice can often contest this approach,
especially in the case of EEZ where LOSC is silent. The
following table shows the regulatory jurisdiction of the
three marine research regimes in each maritime zone.
strong enough to halt the entry into force of LOSC, until
the signing of the 1994 Implementation Agreement.
Another serious issue that rose up during the UNCLOS
negotiation was the difficulty to agree on definitions for
the various research activities described. In the end a decision was made; the context of research activities would
derive from the various regulatory articles (Soons, 1982).
While this proved a useful decision at the time, it has
started to cause problems as advancements on marine
technology and contemporary international relations lead
to possible abuse of the Convention regulations through
ambiguous interpretations.
C.
The Practical Application of LOSC on Marine
Research Issues
It is quite clear that on the issue of marine research activities, LOSC tried to compromise two different trends. Traditional maritime powers, opting for the maximum possible freedom in world oceans, found themselves against the
developing countries’ hopes for ocean resource fueled
development. Not surprisingly, the majority of developing
coastal, island and archipelagic States immediately declared their will to establish Exclusive Economic Zones,
soon after the Convention’s adoption (Koh, 1987; Pardo,
1987). It’s also hardly surprising that the EEZ, as a newly
inducted institution of the Law of the Sea and covering
large parts of the ocean, causes the most problems relating
It should be clear that in comparison to the 1958 Geneva to marine research.
Conventions, LOSC applies much stricter rules for marine
research. Coastal States control research activities in very Undeniably, the reality of marine research can be quite
large areas created by EEZs and Extended Continental different from legal provisions. Two issues act as the maShelves (which under conditions can stretch up to 350 jor differing factors between the LOSC and State practice:
nautical miles from baselines). In the beginning, these the different approach and interpretation of LOSC regulalimitations caused much concern to scientists as to the tion and the ambiguous regime of certain research actividisappearing right of research, but the up to date practice ties, especially since these activities are a result of recent
showed no serious hindrance. Generally, LOSC provi- technological advancement.
sions are regarded as a genuine codification of customary
rules, regarding the various research regimes and limita- a) Different Interpretation of Rules. The Liberal and Restrictive Approach.
tions within national jurisdiction maritime areas.
Certain disputes can be identified as to the exact nature of
State rights in the EEZ regarding research. This is mainly
due to the fact that the EEZ has not been a traditional
maritime zone, leading to different interpretation theories
as will be examined below. Especially difficult has been
the adoption and implementation of LOSC articles on the
International Seabed (or the Area). Developed States
would not readily accept the sole right of International
Seabed Authority to regulate the exploration and exploitation of non living resources of the Area. An objection
Due to the ambiguous regulation on some fields of research activities, it is quite common to face contradicting
interpretations. It must be noted here, that the LOSC regulation is generally accepted, even in cases of States that
originally voted against it, such as the USA (Kotsina,
2008; Scott, 2004)6. The problem usually lies in the interpretation of articles. These are usually viewed through the
national interest lens, differing from the actual content of
regulation and aiming at greater coastal State control or in
other cases greater freedom of action.
——————————————————————————————–
5
See also the related Exclusive Fisheries Zone, as codified in 1958. United Nations Convention on Fishing and Conservation of the Living
Resources of the High Seas, 1958.
6
For the USA stance regarding LOSC see Former Legal Adviser’s Letter on Accession to the Law of the Sea Convention, American Journal of
International Law, Vol. 98, 2004, p. 307.
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The most usual problem is found in the sphere of national
legislation, particularly in the distinction between various
research regimes. For example, in many countries the legislation regarding marine research, does not distinguish
between MSR, Exploration for Ocean Resources and Hydrographic Surveys and in addition is older than the Convention (Churchill & Lowe, 1988; Gorina-Ysern, 2003).
This can create dubious situations on the application of
rules, especially in the EEZ’s and in changing interna­
7
tional and regional conditions .
UK, as major maritime powers with strong blue water
military fleets, champion the liberal approach on the subject, insisting that the lack of mentioning in LOSC places
military surveying out of regulation. This viewpoint is
strongly opposed in practice by China, Canada and Aus9
tralia (Bateman, 2005) . The main argument in favour of
free military surveying is, according to its supporters, the
clear distinction between MSR and Hydrographic Surveys
in LOSC articles 19, 21, 40, 54. By using these arguments, liberal supporters place military surveys under the
freedom of navigation, on the same terms as hydrography,
based on flag State sovereignty and warship immunities in
areas beyond the Coastal State’s Territorial Sea. Based on
this and on the fact that LOSC Part XIII doesn’t mention
the term “survey”, their claim is that Marine Scientific
Research consent regime cannot be applied in such cases.
Closely connected to the above, one can identify the issue
of interpretation of LOSC by the various States. The two
major tendencies can be identified as the restrictive and
the liberal approach of LOSC. These tendencies are not
very different from the stance that various States had during the UNCLOS negotiations, maritime powers being in
support of the liberal stance and the developing countries The US Naval Commander’s Handbook defines military
supporting the restrictive one.
surveys as “… the collecting of marine data for military
purposes and, whether classified or not, is generally not
At this point, it is quite interesting to note that the liberal made publicly available. A military survey may include
stance supporters, regard any activity not namely men- collection of oceanographic, hydrographic, marine
tioned in LOSC as “free for all”, whereas the restrictive geological, geophysical, chemical, biological, acoustic,
stance supporters regard it forbidden. This ambiguity will and related data” (Department of the Navy, 2007). The
8
become clear in the cases that follow .
UK Navy terminology is similar to the above, with the
exception of using the term “military data gathering”
b) Contentious Research Regimes and Marine Research instead of “military survey” (Bateman, 2005). It is thus
Technological Developments
clear that military surveys can have any content, normally
regulated under different regimes (Bateman, 2005;
Military Surveys
Military Surveys (or Military Data Gathering) are right- Valencia, 2004).
fully regarded as one of the most contentious issues in
marine research and lately a source of tension, particularly
between USA and China (Bateman, 2005). The major
problem lies with the Convention’s total silence on war­
ship activities and, in our case, with their conduct of marine research. This research can take the form of oceanographic research (focusing on the marine environment,
similar in content to MSR) or hydrographic surveys
(focusing on water properties and depth measurements
similar to the LOSC era hydrography).
An important aspect of differentiation between MSR and
Military Surveys, accepted in academic literature, is that
of research outcomes dissemination. Whereas dissemination of research results is a clear obligation of scientists
conducting Marine Scientific Research under Part XIII, it
clearly contradicts the classified nature of military surveys
despite the obvious relation of results. This final argument
seems to provide a basis for the non inclusion of military
surveys in MSR and the coastal State consent regime.
The main areas of concern, regarding military research,
are the Continental Shelf and EEZ, where the coastal State
exercises jurisdictional rights but has no sovereignty. The
liberal / restrictive debate has strong impact on military
surveys and the concern these activities cause. USA and
Operational Oceanography is another case of marine research with dubious status. LOSC doesn’t include a solid
remark of research conducted via floaters or other similar
automated instruments 11.
Operational Oceanography10
———————————————————————————————
7
A clear example can be found in the increasingly restrictive stance of China in research related issues in its zones of jurisdiction and the problems created especially
with the USA, strong supporter of the LOSC liberal approach. See bellow.
8
See the State Department’s opinion on the absence of control over research issues in USA EEZ at http://www.state.gov/g/oes/ocns/opa/rvc/ (last accessed November 16
2010), while regarding China’s strict control stance see Zou Keyuan, China's Marine Legal System and the Law of the Sea, Martinus Nijhoff Publishers, Leiden/Boston,
2005.
9
See the incident in China’s EEZ near Hainan Island, between Chinese ships and the USNS “Impeccable” in March 2009 at http://articles.cnn.com/2009-03-09/politics/
us.navy.china_1_chinese-ships-chinese-vessels-chinese-media?_s=PM:POLITICS (last accessed November 16 2010) και http://news.bbc.co.uk/2/hi/7933171.stm (last
accessed November 16 2010).
10
Operational Oceanography is defined as the activity of longtime systematic data recording regarding seas and oceans and their rapid interpretation and dissemination.
See http://www.eurogoos.org (last accessed November 16 2010).
11
Part XIII, Section 4, articles 258 – 262 refer to Marine Scientific Research conducted via installations or similar equipment, not to the real time data transmition
provided by floaters.
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The negotiation procedures in UNCLOS III, provide for
clues that show States had accepted and supported the
need for unhampered data flow12 (Bork, Karstensen,
Visbeck, & Zimmermann, 2008; Roach, 2007). It is true
that at the time of UNCLOS negotiation and the Convention’s signature, data from similar instruments (fixed or
free floating) were mostly of meteorological use, which
was connected with the safety of navigation (Roach,
2007).
The number of internationally sponsored research programs that use a wide variety of equipment for measurements (including the “ships of opportunity” Program)
(Bork et al., 2008; Roach, 2007; Soons, 2007) grows daily
and so does the amount and quality of data provided. In
addition the data provided are far more inclusive and contain many results usually provided by Marine Scientific
Research and are not anymore of purely meteorological
use.
In 2003, IOC ordered the IOC/ABELOS committee to
examine the issue of oceanographic data collection on the
high seas (which for the purposes of the activity include
EEZ waters). The result was the adoption of the 2008
Resolution EC.XLI.4 (Guidelines for the Implementation
of Resolution XΧ-6 of the IOC Assembly Regarding the
Deployment of Profiling Floats in the High Seas within
the Framework of the Argo Programme) concerning the
ARGO data collection Programme13. The guidelines suggested prior information of coastal States for the placement of floaters, which could eventually drift into their
EEZs. This resolution wasn’t easily accepted and many
found its legal basis controversial. Concluding, both
liberal and restrictive viewpoints provide arguments for
the defense of their position, and based on today’s evi­
dence, the precise regime seems unclear.
Marine Scientific Research and Hydrographic Surveys
regime differences have been mentioned in previous parts
of this paper. These differences depicted the needs at the
time of UNCLOS negotiations. An example on that, is
that since hydrographic surveys tended to be conducted by
government vessels enjoying sovereign immunity (and
even more often by military vessels), it wouldn’t make
much sense to try to strictly regulate them.
However, one cannot fail to notice today’s elements that
create new conditions. Firstly and most importantly, in
practice States don’t seem to differentiate between MSR
and Hydrographic Surveys in their legal provisions
(Bateman, 2005). The applicable legislation for MSR
(most importantly the application of the consent regime)
is usually applied to Hydrographic Surveys too. On an
academic level, discussion as to the validity of variation
between the two research types has taken place and objections have been expressed, most notably in the 2003
Tokyo Meeting on the Regime of the EEZ15. In that meeting, it was noted that the Hydrographic Surveys regime 16
as mentioned and codified in LOSC, referred to its use in
straits and the territorial sea for navigational safety
reasons. Contemporary technological conditions and
means for conducting surveys differ greatly and can provide data comparable to those provided by MSR
(Bateman, 2005; Valencia, 2004, 2005; Valencia &
Akimoto, 2005).
It’s true that the freedom to conduct hydrographic surveys
in parts of the high seas under coastal State jurisdiction is
currently, according to State practice, debatable. Once
again, one can clearly see the two aforementioned stances
(liberal and restrictive) being present in this debate.
Concluding, “Modern” Hydrography is often viewed
suspiciously in the prospect of the dual application of
results and is thus many times treated similarly to MSR as
14
“Modern” Hydrography
to the obligation for previous notification and consent
The LOSC text, as in the case of Marine Scientific (Bateman, 2005; Xiaofeng & Colonel Cheng Xizhong,
Research, doesn’t include a definition on what constitutes 2005).
Hydrographic Survey and its precise content. As a result,
Maritime (or Marine) Archaeology
many countries (most notably the USA) and competent
organizations such as the International Hydrographic Another marine research regime, which remains doubtful,
Organization, have developed their own definitions in mainly due to the vague reference in LOSC, is the
order to clarify the issue (Bateman, 2005; Wegelein, Maritime Archaeology regime. The main references can
2005).
be found in Art. 149 (“Antiquities in the Area”) and 303
———————————————————————————————
12
The statement of UNCLOS Third Committee President Dr. Yankov for the necessity not to hamper operational oceanography, is one of these clues thought it is not
generally accepted as recognition of the Convention’s drafters purpose to exempt it from MSR provisions.
13
For the full text see http://ioc3.unesco.org/abelos/index.php?option=com_content&task=view&id=41&Itemid=54 and regarding the ARGO program http://
www.argo.net/ (last accessed November 16 2010).
14
According to IHO “Hydrography is the branch of applied sciences which deals with the measurement and description of the physical features of oceans, seas, coastal
areas, lakes and rivers, as well as with the prediction of their evolution, for the primary purpose of safety of navigation and all other marine purposes and activities,
including economic development, security and defence, scientific research, and environmental protection.” at http://www.iho.int/srv1/index.php?
option=com_content&view=article&id=299&Itemid=289 (last accessed November 16 2010).
15
Organized in 2003 by the East West Center and the Ship and Ocean Foundation (SOF) - Institute for Ocean Policy, with the participation of many distinguished
scholars on the subject.
16
Hydrographic Surveys do not have a special “regime” or Part devoted as MSR, but references as in the articles shown on Table 1.
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(“Antiquities in Contiguous Zone”). This was a result of
the open disagreement in UNCLOS for the creation of a
regime. What remains certain is the rejection of the
proposal to extend coastal States’ rights beyond the terri­
torial sea. Based on the Convention’s provisions, in areas
beyond the contiguous zone applies the freedom to
conduct research for antiquities, while in the Area
(international seabed) research is also free, but must be
conducted for the benefit of mankind, while recognizing
preferential rights to the State of origin (Hayashi, 1996;
Strati, 2006).
Hardly surprising, State practice is quite different. Deviant
practices include both coastal State efforts to claim exclusive jurisdiction on antiquities found in their EEZ (e.g
Malaysia) (Nayati, 1998) and researchers’ efforts to grant
their activities MSR status, in order to gain faster and
easier consent. Such practices are regarded commonplace
behavior for modern treasure hunters. The 2001 UNESCO
Convention on the Protection of the Underwater Cultural
Heritage, tried to answer to the exploited LOSC gaps, by
enforcing the role of coastal States in the EEZ and the
Continental Shelf. The UNESCO Convention has only
recently (January 2009) entered into force and its
efficiency remains to be seen17, but the fact that it was
required to create a new legal instrument to enforce underwater antiquities protection shows the inadequacy of LOS
Convention to regulate maritime archaeology research.
———————————————————————————————
17
The 2001 UNESCO Convention expanded the regime by defining the objects of protection and by strengthening the role of coastal and archipelagic states role in EEZ
and Continental Shelf. See Convention on the Protection of the Underwater Cultural Heritage 2001, at http://portal.unesco.org/culture/en/ev.phpURL_ID=34114&URL_DO=DO_TOPIC&URL_SECTION=201.html (last accessed November 16 2010).
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ii. Marine Research Technological Developments
In addition to research activities with contentious regime
connected with LOSC, there are a number of research
activities completely out of the Convention’s context,
these being results of technological advancements of
post-UNCLOS era. These research activities are usually
conducted under various regimes, connected with LOSC,
such as the 1992 United Nations Convention for Biological Diversity (CBD 1992) and others.
Bioprospecting
United Nations Informal Consultative Process on Oceans
and the Law of the Sea – ICP), the International Seabed
Authority (through the Legal and Technical Commission)
and the Convention on the Biological Diversity (through
the Subsidiary Body on Scientific, Technical and Technological Advice) (Scovazzi, 2004; UNU-IAS, 2005).
Indicative of the variety of views on the subject is, that in
the 2004 ICP discussions, when the subject of
bioprospecting was set on the table, the participating
States’ opinions varied between those that regarded that
living resources of the international seabed are part of the
Common Heritage of Mankind regime, those who
regarded bioprospecting as a form of MSR and those who
regarded it, as a new research activity without present
legal regulation (UNGA, 2004; UNU-IAS, 2005)19.
Technological advancement in recent years, have created
the capability to conduct marine research in the ocean
abyss and especially on the ocean floor areas, where
lithospheric plates meet. The discovery of unique life
forms proved to be financial beneficial in many fields and Remote Sensing20
the consequent result was a rise in research activity
The last form of marine research examined in this paper is
connected with the deep ocean floor biodiversity.
the method of remote sensing. Remote Sensing is a very
What makes this type of research special is that it is special method of research in marine environment,
conducted almost exclusively on the international ocean because it doesn’t include any physical contact with water
floor and LOSC doesn’t include any provisions for it. In mass. The importance of Remote Sensing is very high,
2003, the Subsidiary Body on Scientific, Technical and especially in the cases of electronic charting of large
Technological Advice of CBD defined bioprospecting as marine areas. This is proved by the number of national,
“…the exploration of biodiversity for commercially regional and international programs on the subject
valuable genetic and biochemical resources” or “…the (Wegelein, 2005). If one would try to identify similarities
process of gathering information from the biosphere on of Remote Sensing with other research activities, the
the molecular composition of genetic resources for the closer match is Operational Oceanography, as to the
development of new commercial products”. These defini­ ability to collect and transmit data in real or near real time
tions include scientific and economic aspects of (Ryder, 2003).
bioprospecting (Leary, Vierros, Hamon, Arico, &
Depending on the altitude, research can be conducted
Monagle, 2009; Scovazzi, 2004)18.
from air space or outer space. Air space research is
Bioprospecting has created disputes both on academic and usually conducted by airplanes and other flying platforms,
State levels. The discussions for a possible regime take which are subject to established rules while flying over
place simultaneously in the United Nations (through the maritime zones21. The important and problematic legal
———————————————————————————————–————————————————————————————————————————————————————————————-
18
Study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the conservation
and sustainable use of genetic resources on the deep seabed (decision II/10 of the Conference of the Parties to the Convention on Biological Diversity) UNEP/CBD/
SBSTTA/8/INF/3/Rev.1.
19
See UNU-IAS Report, op.cit. pp. 36-37 and Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea
at its fifth meeting, UNGA/A/59/122.
20
As "remote sensing" is defined “…the sensing of the Earth's surface from space by making use of the properties of electromagnetic waves emitted, reflected or
diffracted by the sensed objects, for the purpose of improving natural resources management, land use and the protection of the environment..”. See principle Ι,
UNGA/41/65 “Principles Relating to Remote Sensing of the Earth from Outer Space” of 3/12/1986.
21
Law of the Sea as well as Air Law make no reference to Marine Research conducted through aerial means. The rights, mainly, of third states are implied by various
clauses of the Law of the Sea Convention and the Chicago Convention on International Civil Aviation, 1944 (which applies to all but-the-military aircrafts, those conducting research included. See art. 3). Furthermore, there exist no relevant international regulations on law enforcement in case a violation occurs. Verification of research activity conduct, along with law enforcement are practically impossible when we are referring to aerial means of Marine Research; thus overflight ban seems to be
the most effective measure.
In the airspace over Territory, Internal Waters and Territorial Sea (National Airspace) the coastal state has the right to ban overflight and/ or regulate third states’ activi­
ties. Contrarily, the Freedom of Overflight and Marine Research applies in the airspace superjacent to the High Seas (see LOSC art 87§1). Things get more complicated
in the EEZ, where conduct of MSR and Exploration – Exploitation requires prior consent by the coastal state, no matter what technique or method is applied. Despite the
fact that this Zone is a part of the High Seas (esp. under an Air Law viewpoint) a research activity without the coastal state’s consent would, actually, be a violation of its
sovereign rights (LOSC art. 56). Of course this assumption remains on a theoretical level, since no such jurisdiction over the EEZ has been explicitly attached.
To conclude, two clauses included in the Chicago Convention are of relevant interest to our issue, since they could also apply to marine research activity: a) article 36
states that “Each contracting State may prohibit or regulate the use of photographic apparatus in aircraft over its territory” and b) article 8 “No aircraft capable of being
flown without a pilot shall be flown without a pilot over the territory of a contracting State without special authorization by that State and in accordance with the terms of
such authorization”.
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vacuum lies with the use of satellites for observation, In modern maritime environment, where the State’s role
which by being outside the atmosphere are not subject to as sole actor is retreating constantly and new or renewed
issues such as maritime security, marine environment and
similar restrictions22.
intellectual rights of research products play an important
Technological advancements in satellite observations role in ocean governance, it is more than certain that remean that a large spectrum of information can be search activities will increase, especially on the high seas.
collected and by all probability more will be collectable in It is of extreme importance that each of the research activities mentioned in this paper should have a clear set of
the years to come. Bearing in mind today’s legal ambigu­ rules of conduct, in order not become a sort of Trojan
ity in LOS terms, it is essential to find a form of effective horse for destabilizing the world’s oceans. Any rules
consensus on coordination, for the type of data transmit- should have at their heart the relative LOSC provisions,
with a view on the needs for update of a major but, aging
ted.
text.
As part for the need for modernization or updating of the
Law of the Sea and considering the difficulties of doing so
via the official amendment procedures of LOSC, it is very
important to strengthen the role of competent international
organizations in keeping Law of the Sea up to date with
contemporary demands. The competent international organizations can provide a much more flexible platform for
modernization and rules of conduct on the various aspects
of ocean policies in the new century.
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D.
Conclusions
Research activities and their respective regimes in
LOSC seem at first notice clearly distinguished, on the
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Convention’s signing this image seems to be fading. Ma­
rine Scientific Research, Exploration and Exploitation and
Hydrographic Surveys regimes seem to overlap, allowing
the use of the various research regimes for ambiguous
activities. Whereas other research activities, such as those
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Biographies of the Authors
Tilemachos Bourtzis is PhD candidate on the Law of the
Sea, focusing on Marine Scientific Research, in the
Department of International and European Studies of
Panteion University of Athens. He holds a MSc on Environmental Policy and Management from the University of
Aegean and has Graduated the Rhodes Academy of
Oceans Law and Policy (2012). Mr. Bourtzis is a
researcher with the European Centre of Environmental
Research and Training for the last 10 years.
[email protected]
Gerasimos Rodotheatos is PhD candidate on the Law of
the Sea, focusing on Artificial Islands and Structures, in
the Department of International and European Studies of
Panteion University of Athens and Irakleitos II Scholar.
He holds a MA on Environmental Governance and
Sustainable Development from Panteion University of
Athens and has Graduated the Rhodes Academy on
Oceans Law and Policy (2011). Mr. Rodotheatos is a
researcher with the European Centre of Environmental
Research and Training for the last 10 years and Member
o f i t s S t e e r i n g C o m m i t t e e ( 2 0 1 2 - 2 0 1 4 ).
[email protected]
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